S.C. 1901. &C., OF TARANAKI COUNTY V. BROUGH. these matters are defined in section 246 of the Public Works Act. The word "control" is used in section 116 with reference to roads, and, if "control" means absolute control, the CHAIRMAN, County Council could, if it chose, exclude some persous from the use of the roads. If a riparian owner abuse his commonlaw rights the County Council can interfere, but not otherwise. If the control given to Councils be unqualified, the common-law rights of the riparian owners have been confiscated, and without compensation. There is no provision in the Act for granting compensation for loss of riparian rights, and no procedure laid down. Statutes which affect common-law rights are to be construed strictly, not liberally, and an owner of property cannot be deprived of those rights without compensation: Rendall v. Blair(1); The Attorney-General v. Horner(2); Harrod v. Worship(3); Ex parte Jones, In re Jones(4); In re Lundy Granite Company, Ex parte Heavan(5); Wells v. London, Tilbury, and Southend Railway Company(6); The Western Counties Railway Company v. The Windsor and Annapolis Railway Company (7). If the Council should find that damage is being done it can proceed by way of injunction. CONOLLY, J.: There can be no doubt that the wording of the Act is not so clear as it might be. There is no interpretation given of the word "control." That being so, I must place my own interpretation upon it. I do not think it was intended by the Act to give to County Councils unqualified control. To do this would be to deprive riparian owners of their common-law rights. Had this been intended I think express words would have been used in the Act. I think the control given to County Councils is a limited control-such a control as would entitle the Council to interfere if injury were done, or about to be done. The authorities cited by Mr. Weston were very strong as showing that a man cannot be deprived of his rights. -at common law except by express words or clear implication, and in such cases the owner of the property affected is entitled to compensation. I cannot construe the Public Works Act as doing this. If the County Councils had been given absolute control it would practically take away from riparian owners, without compensation, that ownership which, at common law, S.C. 1901. &C., OF extends to the centre of the river-bed in non-navigable rivers. There are no express words in the Act doing this, and there CHAIRMAN, is no provision for compensation. The Act empowers the County Councils to exercise rights similar to those which can be exercised by other riparian owners, entitling the Councils to interfere in order to protect those rights when injury has been done or is contemplated. TARANAKI v. BROUGH. Judgment must be for the defendant, with costs £15 15s. Solicitor for the plaintiffs: J. R. B. Roy (New Plymouth). Solicitor for the defendant: T. S. Weston, jun. (New Plymouth). S.C. IN BANCO. WELLINGTON. 1901. August 21; September 22. EDWARDS. J. DOYLE. THE NEW ZEALAND CANDLE COMPANY (LIMITED). Master and Servant-Liability for Injury to Servant-Common Law-Defect in Plant-Knowledge of Servant-Volenti non fit Injuria—“The Employers' Liability Act Amendment Act, 1891," Section 5-Direction by Judge--Request by Jury-Omission of Formal Compliance-Application for New Trial-Rule 271. Where a servant is injured through a defect in plant in connection with which he was employed to work, it is no answer to an action for damages against the master at common law to show that the defect existed when the servant entered upon the employment. It must be shown further that the servant knew of the defect, and that he knew the nature and extent of the risk to which he would be subjected by it. And where in such a case it is set up that the servant subsequently to entering upon the employment acquired a knowledge of the defect, this is no defence unless it is shown further that he continued in the employment with full knowledge and appreciation of the nature and extent of the risk which he was incurring, and with an acceptance on his part of that risk. Where, in such a case, the defect was in a furnace, and gave rise to the generation and explosion of gases in the furnace, causing flames to blow out from the door, and it appeared that the plaintiff knew at the time of entering upon the employment of fireman that flames did from time to time blow out, with consequent risk to the fireman, but it was admitted that he did not, either then or until after the injury, know the cause of it, and the case for the defendants was that the cause of the blowing-out was a down-draught owing to the situation of the factory near a hill, Held, That it was competent for the jury to come to the conclusion that the plaintiff did not fully appreciate the nature and extent of the danger, since if owing to the one cause it might be much greater than if owing to the other. There is no distinction between a case where an injury is caused to a servant by a defect in machinery and a case where it is caused by a defect in the system of carrying on the works. Smith v. Baker & Sons(1) and The Wellington and Manawatu Railway Company (Limited) v. McLeod (2) followed. S.C. 1901. DOYLE v. The plaintiff claimed £1,000 damages at common law, or, in the alternative, £500 under the Employers' Liability Acts. At the trial counsel proposed and agreed to the following issues as to damages-"What NEW ZEALAND damages is the plaintiff entitled to (a) under the Employers' Liability CANDLE COMPANY. "Act, (b) at common law?"-and the Judge directed the jury that under the Employers' Liability Act the limit of the damages was £500, and that if they thought the extent of the plaintiff's injuries warranted it they might under question (a) assess the damages at any sum not exceeding that amount, and intimated that in his opinion it would be proper so to assess the amount. The jury brought in a unanimous verdict. awarding under (a) £500, and under (b) £600 in all. No objection was taken at the trial to the direction, or to the form of the verdict. Held, 1. That the defendants were precluded from afterwards taking the objection that there had not been a literal compliance with the provision of section 5 of “The Employers' Liability Act, 1891," that compensation under the Employers' Liability Acts is not to exceed three years' earnings unless the Judge shall, at the instance of the foreman, upon being requested by three-fourths of the jury, direct that in his opinion such earnings would not be a fair and reasonable compensation. 2. That, in any case, the objection was one which went to a misdirec tion, and was not, therefore, in view of Rule 271, a sufficient ground for a new trial, it being plain that there had been no substantial wrong or miscarriage of justice. THIS was an action in which the plaintiff, a fireman in the employ of the defendant company, claimed damages from the defendant company for an injury sustained by him whilst in its employment. The statement of claim set up alternative cases at common law and under the Employers' Liability Acts, and claimed £1,000 damages at common law and £500 under the Acts. The case was tried at Wellington before Edwards, J., and a special jury of twelve, on the 6th, 7th, 8th, and 9th of August, 1901, and was now argued on a motion by the plaintiff for judgment on the findings of the jury, a motion by the defendant for a nonsuit pursuant to leave reserved, and a motion by the defendant for a new trial on notice given. The pleadings, findings of the jury, and other facts of the case will be found fully stated in the judginent of Edwards, J. Skerrett, for the defendant company:— First, as to the action at common law, the following propositions are submitted: (a) The relationship between master and servant imposes no greater obligation upon the master S.C. 1901. DOYLE v. CANDLE COMPANY. towards his servant upon entering his employment than the master owes to a licensee or any person with whom he has business relations. (b.) When a servant enters upon the emNEW ZEALAND ployment of his master he is entitled to assume that the machinery and plant are reasonably safe and fit for their purposes; and if the master knows or ought to have known, and the servant is ignorant, of any defect rendering them unsafe or unfit, the master is liable for any injury caused to the servant thereby. (c.) If, when the servant enters on the service, the machinery is in a particular condition to the knowledge of the servant, or the risk arising from the condition of the machinery is then apparent, it is a presumption of law that the workman enters on the employment on the terms of encountering the risk. (d.) The same rule as in (c) applies when the master and servant have at the time of the entry of the servant upon the employment equal knowledge of the condition of the machinery. (e.) If a risk arising from a defect in the machinery is not known to the servant, or is not apparent at the time of entering the service, but afterwards becomes known or apparent, and the servant continues in the employment, he cannot recover at common law. (f.) If the machinery is in good order and condition at the time of entering upon the service, but afterwards is permitted to fall out of repair or deteriorates so that it becomes dangerous and unsafe, and the servant is thereby injured, such neglect amounts to personal negligence on the part of the master, and the servant is entitled to recover unless the case can be brought within the maxim Volenti non fit injuria. (g.) If the work is carried on under a negligent system there is no presumption of knowledge of the defect on the part of the servant, and the onus is in such a case on the master to show that the servant knew the full risk and undertook the risk. There is a strong current of decisions establishing the above propositions, and only certain dicta to the contrary: Beren on Negligence(1); Beven on Employers' Liability (2); Story on Agency(3): Griffiths v. The London and St. Katharine Docks Company(4), where it was held that knowledge of the master and ignorance of the servant are both necessary, and that has never been dissented from; Groves v. Fuller(5); Priestley v. Fowler(6); Dynen v. Leach(7); Assop (1) 2nd ed. 735, 757. (2) 2nd ed. 3-5, 26, 28. (3) 9th ed. 531, note. (5) 4 T. L.R. 474. (6) 3 M. & W. 1; 7 L.J. Ex. 42. (7) 26 L.J. Ex. 221. (4) 12 Q.B.D. 493; on app. 13 Q.B.D. 259. v. Yates(1); Couch v. Steele (2); Senior v. Ward(3); Skipp v. Eastern Counties Railway Company(4); Riley v. Baxendale (5) Potts v. Plunkett (6); Laxton v. Hawksworth (7); Vaughan v. Cork and Youghal Railway Company (8); Woodley v. Metropolitan District Railway Company(9); Brooks v. Courtney(10) There are two dicta in Yarmouth v. France(11) and Thomas v. Quartermaine(12) which, if sound, are conclusive in the de fendant's favour. All the contrary dicta come within (f) or (9), applying either to cases of neglect of the personal duty of the master, which he cannot delegate, to see that the machinery is not allowed to fall out of repair or to deteriorate, or to cases where there is some negligence in the system of carrying on the work. The following were cases of personal negligence of the master in connection with the machinery: Holmes v. Clarke (13); Holmes v. Worthington(14); Webb v. Rennie(15); Murphy v. Phillips(16). As to the second exception, in cases of defective system: There is a wide distinction between an injury to a workman from a machine which he himself controls and an injury which is the result of a general system which may not be known to him, which he himself is not concerned with, and which he cannot control. Bartonshill Coal Company v. Reid(17), and that class of cases, is distinguishable on two grounds, first because there there was personal negligence on the part of the master, and secondly because there was an improper system. The dictum of Lord Cranworth in that case(18) was too broad. There is a presumption that a workman has equal knowledge of what he is concerned with in his own work: but there is no such presumption in regard to the general system: Beven on Negligence(19); Beven on Employers' Liability(20). Smith v. Baker & Sons (21) itself was a case of defective system. The dicta may have gone beyond that, but they are mere dicta. All the Law Lords were really referring to a case of defective system, and it was never intended to overrule Griffiths v. The London and (1) 2 H. & N. 768; 27 L.J. Ex. 156. (4) 9 Ex. 223: 23 L.J. Ex. 23. (6) 9 Ir. C.L.R. 290, 298. (7) 26 L.T. 851, 853. (8) 12 Ir. C.L.R. 297, 303. (9) 2 Ex.D. 384. (10) 20 L.T. 440. (11) 19 Q.B.D. 647, 650-51, 653. VOL. XX. -44. (12) 18 Q.B.D. 685, 689. 700. (14) 2 F. & F. 533, 536. (17) 3 Macq. H.L.C. 266. (18) Ibid. 288. (19) 2nd ed. 747. (20) 2nd ed. 25. (21) [1891] A.C. 325. S.C. 1901. DOYLE v. NEW ZEALAND COMPANY. |